Court Will Decide Constitutionality of "Clean Elections” System

Arlington, Va.—In a case that will have national implications for free speech, today the U.S. Supreme Court agreed to hear a challenge brought by the Institute for Justice to Arizona's "Clean Elections" Act. The case, Arizona Free Enterprise Club's Freedom Club PAC v. Bennett, challenges Arizona's system of government-funded political campaigns—one of the broadest campaign finance regimes in the nation. This program forces taxpayers to fund politicians' campaigns and punishes not only candidates who refuse government subsidies but independent groups that support them as well. Arizona's program has been held out as a model by those calling for greater government restrictions on free speech in the guise of campaign finance "reforms" in local, state and federal elections.

Here is how Arizona's system works. For every dollar spent by an independent group opposing a government-funded candidate or by a traditionally funded candidate above a certain amount, the government gives taxpayer dollars to each of the publicly financed candidates in the race. This allows the government-subsidized candidates to "match" the spending—and thus the speech—of the independent group or privately funded candidate opposing him. The harder an independent group or traditionally financed candidate works, the more the government-subsidized candidates benefit. The Act curbs speech, discourages participation and limits what voters will hear about politics.

In June of this year, in a very unusual step, the U.S. Supreme Court stayed an order of the 9th U.S. Circuit Court of Appeals and reinstated an injunction against Arizona's unconstitutional "matching funds" law. A federal district court in Arizona struck down "matching funds" in January as a violation of the First Amendment, but the 9th Circuit stopped that ruling from taking effect and later reversed it. The Supreme Court's decision allowed the 2010 Arizona election to occur without the government cutting checks to favor those politicians who receive government subsidies.

For a brief, funny video explaining how the "Clean Elections" system rigs political races in favor of government-funded candidates, visit: www.ij.org/AZCleanElectionsVideo.

Bill Maurer, the lead attorney in the Institute for Justice's challenge, said, "We hope the Supreme Court will strike down Arizona's 'matching funds' law. The entire purpose of laws like Arizona's is to provide the government with the means to limit individuals' speech by limiting their spending while putting a thumb on the scale in favor of government-funded candidates. That is not allowed under the First Amendment and the Court should put an end to public financing schemes like Arizona’s that are aimed at suppressing free speech."

Paul Avelar, an attorney with the Institute for Justice Arizona Chapter, said, "Matching funds violate the First Amendment rights of candidates, citizens and independent groups. The government may not give an electoral advantage to one candidate by 'leveling' the speech of his opponents, yet that is exactly what happens under Arizona's program. The system is set up to punish those the government believes are speaking too much, while subsidizing those it believes are speaking too little. In a free society, the government has no business micromanaging how citizens debate, of all things, who should run the government."

In this challenge, IJ represents independent expenditure groups—Americans who have banded together to speak out about elections—as well as traditionally financed candidates. Specifically, IJ represents two independent political groups, the Arizona Free Enterprise Club's Freedom Club PAC and the Arizona Taxpayers Action Committee, as well as Arizona political leaders Dean Martin, Arizona State Treasurer, and Rep. Rick Murphy.

IJ client Dean Martin, who has been fighting to have Arizona's system struck down since 2004, including two trips to the 9th Circuit, said, "The road to the U.S. Supreme Court has been a long one. Now that the Court will finally hear the case, however, I am confident that it will recognize how much harm this system does to free speech and free association and strike it down once and for all."

IJ President and General Counsel Chip Mellor concluded, "The Court's decision today means that it will once again have to choose between greater governmental control of our political campaigns and speech or the system enshrined by the Framers who wrote the First Amendment to encourage free and open debate. We hope the Court will continue its recent trend of explicitly recognizing that Americans possess the right to engage in unfettered political discussion free from government efforts to micromanage or silence that discussion."

The Institute for Justice has been a key participant in the movement toward greater protections for free speech. Earlier this month, IJ scored a major legal victory when the 10th U.S. Circuit Court of Appeals ruled that Colorado's campaign finance laws violated the constitutional rights of six neighbors who were forced to register with the government and comply with burdensome campaign finance laws simply for opposing a ballot issue involving the annexation of their neighborhood.

In March of this year, the Institute for Justice, teaming up with the Center for Competitive Politics, won a landmark victory for free speech in federal court on behalf of SpeechNow.org, an independent group that opposes or supports candidates on the basis of their stand on free speech. IJ won a victory for free speech in Florida when a federal judge struck down the state's broadest-in-the-nation "electioneering communications" law, and another in 2007 in Washington when it stopped an attempt to use the state's campaign finance laws to regulate talk-radio commentary about a ballot issue.

In addition to the grant of certiorari in Freedom Club PAC, the Court also will hear the Goldwater Institute's challenge to the law. IJ's and Goldwater's cases were consolidated at the 9th Circuit and the Supreme Court consolidated the cases as well. The Court is expected to hear oral argument in the spring of 2011, with a decision expected to be released by the end of the Court's term in June 2011.